Bill's Institutional Commissary Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1970

186 N.L.R.B. 597 (N.L.R.B. 1970)

BILL'S INSTITUTIONAL COMMISSARY CORP. 597
Bill's Institutional Commissary Corporation and Gen-
eral Truckdrivers, Chauffeurs, Warehousemen and
Helpers Local 270 , affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Ind. Case
15-CA-3239
November 17, 1970
SUPPLEMENTAL DECISION AND
ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On November 27, 1967, Local 270, General Truck-
drivers, Chauffeurs, Warehousemen and Helpers,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Ind., was certified as the exclusive repre-
sentative of Respondent's commissary employees
following an election held pursuant to a Decision and
Direction of Election and the subsequent resolution
of Respondent's objections, which were overruled.'
Thereafter, on June 14, 1968, the National Labor
Relations Board issued its Decision and Order in the
instant case,2 finding that Respondent violated
Section 8(a)(5) by refusing to bargain with the
certified Union. The Board, accordingly, ordered the
Respondent, upon request, to bargain collectively
with the Union. Respondent refused to comply with
this order, contending that the Board's certification of
the Union was invalid.
On November 10, 1969, the United States Court of
Appeals for the Fifth Circuit entered its decision,3
denying enforcement of the Board's Order without
prejudice to a renewal of the Board's enforcement
petition, pending further consideration by the Board.
The court held that Respondent's objection to the
election based on the Union's electioneering conduct
raised issues which should have been resolved by the
Board upon a hearing, as had been requested by
Respondent. Accordingly, the court remanded the
case to the Board, to receive evidence and determine
"the extent to which the Union misrepresentations
affected the election."
On February 26, 1970, the Board issued an Order in
which it reopened the record, remanded the case for
further hearing consistent with the opinion of the
court, and directed the Trial Examiner, upon conclu-
sion of the hearing, to prepare and serve on the parties
a Supplemental Decision containing findings of fact,
conclusions of law, and recommendations. Pursuant
to notice, a supplementary hearing was held on April
9, 1970, before Trial Examiner Thomas A. Ricci.4
On June 26, 1970, the Trial Examiner issued the
attached Supplemental Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Supplemental Decision and a supporting brief, and
the General Counsel filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Supplemental Decision, the exceptions
and briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the Respondent, Bill's Institutional Commissary
Corporation, New Orleans, Louisiana, its officers,
agents, successors, and assigns, shall take the action
set forth in our original order dated June 14, 1968.
I
Case 15-RC-3716, decision not punted in NLRB volumes
2 171 NLRB No 188
3 418 F2d405
4 Respondent's motion to dismiss the complaint and remand the case
for a hearing before a Hearing Officer in the representation case is hereby
denied See Metropolitan Life Insurance Company, 156 NLRB 1408
5 We agree with the Respondent that a hearing on objections should be
conducted in accordance with the rules applicable to nonadversary
proceedings Addison Shoe Corporation, 184 NLRB No 35 at In I
However , the very nature of the Respondent 's exceptions to the procedural
aspects of this hearing appears to be a protest against a failure to adhere to
strict rules which might apply in an adversary matter In any event, we do
not find that the General Counsel's conducting his case as an adversary
proceeding constituted prejudicial error under the particular facts of this
case as the Trial Examiner correctly held that the burden was on the
Respondent to prove an improper impact upon the election The court
remanded this case for a full hearing on the Respondent 's objection The
General Counsel submitted his evidence on the possible impact the letter
might have had on the election Following the court's remand, the
Respondent had ample opportunity in its preparation of its case for the
hearing to investigate and question , under proper safeguards , the current
and former employees See Patent Traders, Inc, 167 NLRB 842, 855, and
cases cited therein Having failed to make any such investigation , it cannot
now be said that Respondent was denied due process of law.
SUPPLEMENTAL DECISION
POSTURE OF THE CASE
THOMAS A. Ricci, Trial Examiner: This case is before the
Board on remand from the circuit court , which denied
enforcement of an affirmative bargaining order and
remanded the proceeding for a hearing to determine the
186 NLRB No. 82
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect upon the employees of a misrepresentation by the
Union before a Board-conducted election.' The Board had
found a violation of Section 8(a)(5) of the Act by the
Respondent following a refusal to honor a certification of
representatives.2 Pursuant to the remand, the Board
reopened the record for a hearing consonant with the
court's opinion and the hearing was held before the duly
designated Trial Examiner on April 9, 1970, at New
Orleans, Louisiana. All parties were afforded full opportu-
nity to call witnesses and introduce evidence. Briefs were
filed by the General Counsel and the Respondent after the
close of the hearing.
Upon the record as made at the reopened hearing, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACT
The charge and the complaint were occasioned by the
Respondent's admitted, refusal to bargain with the Union
on request after a majority of the employees involved had
voted for union representation and the Regional Director
had issued a certification of representatives to that effect.
There was an affirmative defense, that union agents had
coerced employees several weeks before the election, and
that the Union had materially misled the employees by
means of a letter mailed to them only a few days before the
balloting. The Board found no merit in either of the
defenses.
Before the circuit court, in enforcement proceedings, the
Respondent reiterated the same defense. As to the first, the
assertion of coercion charged to the Union, the court
agreed there was insufficient reason to hold any hearing, as
the Respondent demanded.
The second defense, that the Union letter to the
employees contained a material misrepresentation and
therefore misled the employees into voting in favor of the
Union, rested on a letter mailed on September 25, 1967, to 9
of the 10 employees eligible to vote in the election. The
election took place at 5 p.m., Friday, September 29, and
management first learned of the letter when it saw a copy
brought to the unit manager early that morning. It reads as
follows:
Dear Sir and Brother:
I would like to thank you for the wonderful
attendance we had at our last meeting, and I would also
want to remind you that the up-coming election that
will be held at your plant means more to you as a
worker and breadwinner than you may realize. For your
consideration I have enclosed a page from one of many
contracts that the Teamsters now have in force with the
same type companies that you work for now.
Look over these wages and see for yourself just what
you should be getting and compare them with your
present wages; and then, ask that old boss if he really
has your welfare in mind, or does he want to keep you
in the dark.
The enclosure that accompanied the letter was the
photocopy of a page from a collective-bargaining agree-
ment, one setting out comprehensive wage scales for
I N.L.R.B. v. Bill's Institutional Commissary Corporation, 418 F.2d 405
(C.A. 5).
employee categories similar to those of the Respondent.
The evidence shows, and both the Board and the court were
aware, that the collective-bargaining agreement from which
the wage scale schedule had been taken was a contract then
in effect between this Union and an employer in New York
City (Horn & Hardart) engaged in the same kind of
business carried on by the Respondent in New Orleans. The
contention of the Respondent was, both to the Board and
to the court, that in consequence of this letter the employees
had been misled into believing that the Union had achieved
precisely those wage rates in the New Orleans area, and
that they had voted in favor of the Union in reliance on
such misrepresentation . It was also clear that no one on
behalf of the Respondent learned of the letter before the
morning of the election.
In appraising this defense by the Union , the court
commented that "The letter, fairly read , purports to assure
the employees that the Union can or will obtain similar if
not identical benefits for them ," and that it "clearly implies
that the stated wages were obtainable or in existence in the
New Orleans area .... ." The court also held it could not
determine "whether this misrepresentation had a significant
impact upon the election . . ." because there were not
sufficient facts available to it, and it expressed doubt "as to
whether the Company had either sufficient knowledge or
time to rebut the letter ." Its decision was to remand the case
"for a full hearing to determine the extent to which the
Union misrepresentation affected the election."
Doice Raymond, unit manager, called as a witness by the
Respondent, testified that he first saw the letter in question
when Tilly, a warehouseman , brought it to work on the
morning of September 29, the day of the election. He said
Tilly was the only man at work during the day, and that the
drivers returned from their road work that day at their
usual hour, 3 or 4 p.m. As to the night shift men, who
normally report for work at 6 p .m., they came to the plant
at 4 o'clock that afternoon because of the election
scheduled for 5 p .m. Raymond said he did not discuss the
letter with any of the employees then . He also added that
from his examination of the wage scale attached to the
Union's letter, he "felt" they were not New Orleans rates,
"but I didn't have any specific knowledge ." "I didn't know
for a fact," that the written schedule reflected pay given by
his competitors , "but in my opinion I didn't think it did."
E. B. Joseph Brown , the union business agent, showed,
with letters placed in evidence, that he had received the
New York contracts from there in June , at his request. He
testified that on Saturday afternoon , September 23, about a
week before the election, he called the Respondent's
employees to a meeting with him in his office, and that six
or seven were there . He recalled six of them by name. The
parties stipulated on the record here that one of those men,
Kidder, was not an eligible employee and did not vote, and
that another, Ford , voted subject to challenge . Apparently
his challenge was not resolved because his vote could not
affect the results of the election , which were six for the
Union and two against.
Brown went on to testify that during the Saturday
meeting he showed the contract, also received in total as an
2 171 NLRB No. 188.
BILL'S INSTITUTIONAL COMMISSARY CORP. 599
exhibit here, to the assembled employees, and explicitly
informed them it was a New York contract. He also said
they took it in their hands and read the various clauses. Still
according to the union agent's testimony, the men asked
many questions about the contract and he explained to the
men these "provisions ... were not extremely high even
for the New York area . . . that this was not an exorbitant
wage, that it was quite possible that we could get this; it
would have to be our ultimate goal." When the men asked
could this be accomplished "in one jump," he answered
. . this sometimes was possible, but normally it would
take maybe one or two contracts, and an awful lot of
negotiating and solidarity." Brown added that the employ-
ees then brought up the matter of the Respondent's
competitive position if it should agree to pay these wages,
and that he told them "we would attempt to negotiate with
Bill's Institutional Commissary in the hopes of coming out
with a favorable contract whereby we could go again to the
other people in the industry, that would be relevant to
commissaries, and put everybody on a competitive basis."
No other witnesses were called by any of the parties.
CONCLUSIONS AND RECOMMENDATION
I have no reason for discrediting either of the witnesses
who appeared at the hearing. Manager Raymond said he
had no time to discuss the letter and its wage scale
attachment with the employees that day and that he did not
do so. There is no merit in the General Counsel's
contention that Raymond must have known the schedule
was from somewhere else and that he had ample
opportunity to correct any misunderstanding he might have
imagined the employees entertained. The regular men
returned only shortly before the election, and the road men
came before the 5 o'clock balloting for the purpose of
voting. Any kind of talk by the Respondent to assembled
employees then would now be labeled improper by the
General Counsel under the Board's established electioneer-
ing rules.
Brown had the Horn & Hardart contract in his possession
for some time, he had obtained it for use in this very
organizational effort, and it was to be expected, therefore,
he would use it to show the men what the Union had
accomplished elsewhere and might again do here. Because
the stated wages were higher than the men really expected,
he cautioned them it might take more than a first contract
to obtain so much from the Respondent. The men therefore
knew, when they received the September 25 reminder letter,
that it was the New York contract terms that were attached.
I think it a fair inference that there was talk about this
during the following week among all the employees. Unlike
the case of the manager, who had very little time worthy of
note to combat the argument, experience has shown that
employees will talk the pros and cons of unionism surely
during the last 5 days before voting. Kidder may not have
been eligible, but he was there and heard. On this record
nothing can be said about Ford, but it can hardly be argued
each and every employee in the plant must be informed of
every detail only out of the mouth of the organizer. In these
circumstances it would be difficult to find that in fact the
employees were mislead, when they received the letter, into
believing the wage scale set out rates which some other
employer was paying in the New Orleans area. Or, however
phrased, that the "impact" on them was to cause them to
vote against their true desires.
In nevertheless resisting the validity of the complaint, the
Respondent 's contention at this stage of the proceeding is
essentially a procedural argument, and does not go to the
substance of the matter at issue . At the hearing counsel for
the Respondent objected to the receipt of evidence
pertinent to the remand concern on the ground that it was
offered by the General Counsel after the Respondent had
been afforded full opportunity to introduce its own proof
and had rested. As Manager Raymond's testimony was
intended to establish affirmatively that the Union's
campaign letter had had an improper effect on the
employees, the Government's position was that the
testimony of Business Agent Brown fell in the area of
proper rebuttal.
In its brief the Respondent advances the theory that there
rested a burden on the General Counsel to reestablish the
validity of the Board certification following the election,
and that, having failed to offer affirmative proof in advance
of the receipt of evidence from the Company, the
Government should have been foreclosed, regardless of
whether or not the defense testimony was of any value. To
support this argument the Respondent misreads the import
of the court's opinion. The court did not find, as the
Respondent would have it, that the "certification is dead,"
that it must be "resurrected" by the General Counsel. Had
the court been of the view that the mere fact of the letter
having been mailed, standing alone, sufficed to destroy the
results of the election, it would not have remanded the
proceeding for further evidence. But even assuming, as the
Respondent contends-a view I find without merit-that
the "General Counsel has the burden of proving that the
Union's misrepresentation did not have an impact on the
election ," I am satisfied Brown's testimony suffices to
accomplish even that.
In fact, however, if there is a burden in this complaint
proceeding, it rests on the Respondent. At bottom, the
hearing, as ordered by the court, is on the question of the
validity of the employer's objections to the election. And
the Court had occasion to say, in this very case, when
disposing of the Respondent' s alternative objection based
on alleged coercive conduct by union agents:
"Furthermore, the Company has failed to offer any
evidence that the incidents created an `atmosphere of fear
of reprisal such as to render a free expression of choice
impossible.' " Moreover, as the court said in a comparable
situation : "It is further quite clear that the burden was not
on the board to show that the election was fairly conducted
but on the respondent to show that it was not." N.L.R.B. v.
Huntsville Mfg. Co., 203 F.2d 430 (C.A. 5). Accord,
N.L.R.B. v. 0. K Van Storage Co., 297 F.2d 74 (C.A. 5): "In
order to be entitled to a hearing on its objections to an
election, an objecting party must supply the Board with
specific evidence which prima facie would warrant setting
aside the election."
The truth of the matter is the Respondent has no
evidence in support of its assertion, the basis of objection to
the election , that the letter in question in fact mislead the
employees, ambiguously as it was written. When the court
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remanded the case it did so because it accepted the
Respondent's assertion that it could prove an improper
impact on the election . The Company had ample advance
knowledge of what would be called for at the hearing; it
was afforded full opportunity to call witnesses and it failed
to do so.
RECOMMENDATION
I recommend that the Board reaffirm its earlier finding
that the Respondent violated Section 8(a)(5) of the Act by
refusing to bargain with the Union.